Brownlee in turf war
It is the first legal challenge to Earthquake Recovery Minister Gerry Brownlee's special powers, but it is about more than that.
It is a court case which will determine where new housing goes after the earthquakes, but it is about more than that too.
As much as anything, it is about the competing interests of business. Big business. And politics.
Witness the deep pockets lining up in the High Court in Christchurch this week for the court fight – a bid for a judicial review of the minister's decision to redraw the boundary limiting the city's housing development.
Brownlee's challengers are a group of property developers led by Independent Fisheries, a Christchurch company which has grown from a 1950s Linwood fish and chip shop into one of the country's biggest fish processors.
On its side are Australian-owned supermarket giant Progressive Enterprises, Clearwater Resort land owners Clearwater Holdings, and property owners Richard Peebles, Castle Rock Estate, and the Case family.
On the other side are Brownlee, Christchurch International Airport, and the Urban Development Strategy (UDS) Partners who originally drew Christchurch's housing boundary – Environment Canterbury, the NZ Transport Agency, and the Christchurch, Waimakariri and Selwyn councils.
Bolstering them are the developers of Highfield and Prestons – including Ngai Tahu, landowner CDL New Zealand, and supermarket operator Foodstuffs – businesses protecting projects jointly worth billions of dollars.
Witness the thick stacks of expensively prepared affidavits and the 11 legal counsel, including a QC and a law professor, in the courtroom every day.
It is hard to pinpoint where the story starts, because of the ongoing nature of the years of protracted wranglings, court hearings and appeals between local authorities and land developers over urban sprawl, zoning plan changes, flood-prone land, airport noise contours, and housing density.
A lawyer at an early hearing suggested local councils should not be "running all over Canterbury hooking up water pipes at the whims of developers". An end to developer-driven growth and competition between councils for ratepayers was desired, so the UDS was born.
The strategy created a red-line limit of where new homes could go – part of a scheme of preferred development patterns for years to come.
It took the form of Plan Change 1, an alteration to the Regional Policy Statement which would be reworked in the developers' favour by Environment Canterbury (ECan) independent hearing commissioners, and then appealed by the authorities to the Environment Court.
Then the earthquakes hit, land was red-zoned, and the fast-tracking of land development began. As a senior ECan staff member put it, it wasn't so much the need but the time frame that changed. Land intended for decades of growth was needed now.
Brownlee told this week's hearing that he was under pressure when he redrew the boundary last year, freeing up extra tracts of land but excluding others.
He was being lobbied by councils, the airport and developers, even at social functions. There was an urgent need to rehouse red-zone residents, and a private member's bill on the subject of the airport noise contour had been drafted. He wanted to open up enough sites to prevent "rampant land inflation".
Brownlee's new red line would eventually release tens of thousands of new sections. Prestons, Belfast, Kaiapoi and Halswell were in, but the sites of the now-aggrieved developers were out. Out, too, by order of the minister, were any appeals to the Environment Court.
So the public need for land had been met, but on the business side there were winners and losers among the developers. Were justice and fairness among the losers?
If so much housing was needed, why was some land excluded from the minister's new plan?
Evidence given to the court revealed the minister had given the councils and the airport their way. It was alleged that council and Canterbury Earthquake Recovery Authority staff did not make the minister aware of the complex background to the red line, and saw their chance to get not just an earthquake recovery strategy, but the long-term growth plan they wanted.
Secret emails were read, saying Brownlee had agreed to approve the councils' original boundary choice, "amended to include references to the earthquakes".
Brownlee asked for the UDS partners and the airport's preferred boundary, and he got it. So did Christchurch.
Independent Fisheries director Mike Dormer told the court he was "shocked and dismayed" when he learned the minister, with a stroke of the pen, removed the development potential of his land and his right to appeal.
His company, which already had development interests in North Canterbury, had bought the 22 hectare Casebrook site next to Willowbank Wildlife Reserve because it had been earmarked by authorities as suitable for housing.
The company had already spent a third of a million dollars on legal and consultancy fees, and was facing a loss of value on land it had paid for based on its development potential.
Both the Peebles and the Case land were considered special treatment areas, suitable at some stage for low-density housing alongside ponding areas.
The Case family – Gavin, Margaret and Michael – wanted to subdivide a 32ha Cranford St site their family had farmed since the 1950s.
Ironically, the effect of neighbouring commercial development over years left their land flood-prone and difficult to farm, and independent commissioners had described it as ideal for housing because of its location, and because its residential development would help solve the area's water runoff problem.
Next door, developer Richard Peebles had thought his 12ha, half a kilometre from Northlands Mall and free of liquefaction, would be ideal for new homes. He could have had sections ready within months.
It is hard to escape the conclusion that the Independent Fisheries and Clearwater sites were sacrificed for Kaiapoi, where heavy red zoning created an urgent need for replacement land. All are in the airport's new 50-decibel noise corridor, a quieter version than the 55-decibel limit other New Zealand airports use, and a tradeoff was almost certainly agreed to.
The airport's evidence to the court hearing this week said the airport was not in the business of rewarding property speculation. Counsel Jo Appleyard clearly said that the airport was "not thrilled" at accepting the Kaiapoi deal and was saying "this is it and no more".
Like the Cranford basin land, the Casebrook land had been earmarked as a special treatment area. The city council, and ECan, had long objected to housing on any of them.
If the supermarkets and some of the developers can be labelled big business, so can the airport, Ngai Tahu, and the councils with their holdings and enterprises.